Best Practices for Legal Education

I recently returned from Serbia and Macedonia on a Public Interest Law Institute trip to help assess which Balkan law schools should join PILI’s expanding legal education reform project. Some professors were surprised that US law schools are also wringing their collective hands about how to give ideally all law students more meaningful experiential learning opportunities. But what really surprised our counterparts is that US law graduates can sit for the bar and get a license whether or not they’ve had any practice experience. Indeed, according to The Equal Justice Works Guide to Law Schools, most schools don’t collect information about whether their students had any hands-on experience before getting a diploma.

Like in some central and eastern European countries, Serbian and Macedonian law graduates cannot become licensed until completing a 2-year apprenticeship in the office of the Prosecutor or Parliament, a judge, or a private firm or an NGO, and a licensed attorney certifies the fact.

As we in the US also wring our hands about the miserable job market, I wonder if we might be witnessing a move towards the Balkan model, with a focus on training and hands-on (usually public interest related) experience to launch new lawyers’ careers.

* We’re seeing legions of “deferred” associates spend a year at reduced (law firm) pay with government, advocacy or legal aid offices. According to an ABA Journal story, initial anecdotal feedback on the deferred associate strategy is very positive, from associates and host nonprofit organizations alike.

* Some law schools and bar associations – for example, Ohio State Bar Public Service Program, Houston Law Center, Cardozo, Pennsylvania, Georgetown, Michigan, Harvard, Stanford and Columbia — have recently created short-term paid post-graduate public interest employment opportunities. Recent graduates work “off campus” in nonprofits, and sometimes “on campus” in law school clinics and faculty research centers. According to recent news stories, Denver is fundraising to create a post-graduate state clerkship program and Miami is providing $10,000 foreclosure defense fellowships for eight graduates to help legal aid groups tackle backlogs of cases.

* More than 40 law schools (with some overlap of the above) have long supported at least one post-graduate fellowship either with small stipends or fully-funded public interest fellowship positions. And a growing number of schools have a pro bono or some other clinical, hands-on graduation requirement, including Washington & Lee’s recent transformation of its third year into a practice year. (For lists of school-supported fellowships, and graduation and clinic requirements, check out the Equal Justice Works Guide.)

* National Fellowship programs, providing 2-years of funding (largely from law firms), including the largest of its kind at Equal Justice Works and Skadden’s program, enable new lawyers to get the hard-to-get entry level opportunities needed to launch public interest careers.

* Law firms are also getting in the first-year training game. For example, Howrey & Simon launched its “”lawyer training and initiation program specifically designed to accelerate the development of associate competencies.” First year lawyers spend only one-third of their year doing billable work, devoting the rest to pro bono representation, and participation in trainings including work with Howrey’s in-house writing instructor and assignment to trial teams. Drinker Biddle opted to start associates with a six month training program at a reduced salary rather than defer them. A recent ABA Journal article describes Nixon Peabody’s serious consideration of an apprenticeship program via a “Center of Excellence” where first-year associates “would train until they can graduate to a larger market.”

* At forums like the one held on October 30th at Columbia Law School, the profession and academy discussed the future of pro bono in a changing profession, including recent phenomenon of Big Firms sending new lawyers to public sector hosts for a year, and wondering if although launched in response to a market “crisis”, the model might continue in a more formal way.

This all makes me think we should consider a study tour to the Balkans, to learn more about their post-graduate apprenticeship program. Indeed, we would do well to remember that such luminaries as Oliver Wendell Holmes started his career as an apprentice. Though he did attend classes at Harvard Law School for a year, he balanced this with an apprenticeship at a Boston law firm before taking the bar.

Best Practices in Legal Education? Maybe.

John Burwell Garvey, of Franklin Pierce Law Center and Anne F. Zinkin, of the New Hampshire Supreme Court have published a paper entitled, “Making Law Students Client-Ready: A New Model in Legal Education.”   The primary focus of the paper is to detail the Daniel Webster Scholar Honors Program, which among other advantages, allows successful graduates to bypass the traditional bar exam before being admitted to practice in New Hampshire.  

Click here to download the article from SSRN.

When in North Dartmouth (Massachusetts), go with the flow, and be creative.  That’s what Carrie and Mary did today, Oct. 15,  at their Best Practices presentation at Southern New England School of Law (SNESL).  They adjusted to a colossal late-night technological glitch (Mary’s laptop crashing prior to sending Carrie the slides!) without a hitch (or at least without their audience noticing the hitch).  None of us could tell that they had finished their preparation in the car on the way from Connecticut to North Dartmouth! 

While there was a bit of “preaching to the converted” with Justine Dunlap’s and my presence, several participants had never heard of the BP movement in advance of the meeting, and others had only engaged with it once, a couple of summers ago at an informal gathering at my house.  The level of participation was impressive, and included full-time faculty along with writing faculty, adjuncts, and graduate clinical fellows.  In addition, the participants’ willingness to engage the presenters’ requests — by breaking-off into small groups to address questions Carrie and Mary assigned us – indicated, may I suggest, a willingness to work both individually and cooperatively to improve how we do what we do at SNESL.  The questions Carrie and Mary asked us to address in our small groups included the following: (1) where people thought SNESL was, within the context of the BP movement, (2) what SNESL does well, and (3) where we can improve.  What was encouraging, given that the group has on the whole been working together for many years, was the level of enthusiasm in the small groups; it was difficult for our leaders to get us to break out of the small groups and return to the larger group to share our findings.  But when we did, there were some clear themes, which the presenters encouraged us to continue to address together  throughout the year.

While I can’t judge the level of enthusiasm with which the participants approached the event, it was clear that, while it lasted nearly 2 hours, several participants would have stayed longer had the room not been overtaken by students coming in to take a midterm (which, our presenters noted, was a positive sign, given that assessments were being done at mid-semester!).

 I’m writing at the end of this energizing day, before receiving the presenters’ feedback: a summary of both the responses to the small-group questions and anonymous responses we were encouraged to offer.  It may, then, be too soon to judge whether we at SNESL will use today as our starting point for a serious commitment to the Best Practices Movement.  But I do feel confident that, whether or not the group as a whole moves together into the Movement, some of us within the group will surely address our self-identified “could be improved” aspects (assessment being frequently mentioned) and, through that work, join with the Movement towards the future of legal education.

A few weeks ago, we were fortunate to host a group of educators who are interested in interdisciplinary collaborative education in the form of partnerships between law schools and the health professions at a conference held at Georgia State University College of Law.  Antoinette Sedillo Lopez recently posted about collaborating with other departments in your university, which is a great place to start. 

For those of us interested in partnering with the medical profession, however, the existence of a medical school within our university is not necessarily required.  There is no doubt that collaborating with professors and students from different institutions can be challenging, but law schools are doing it in a number of different contexts.  For example, our clinic is engaged in collaboration with both Emory University School of Medicine and Morehouse School of Medicine, to hold joint classes between law students and medical students and residents. 

Even great distances have shown to be little deterrence to professionals who truly want to participate in interdisciplinary collaboration, as Liz Tobin Tyler of Roger Williams University School of Law can attest.  Her law students commute approximately one hour to share a a classroom with students from Brown Medical School who are taking a seminar entitled, “Law, Medicine and Ethics.”

The learning benefits of interdisciplinary education have been described in different ways.  The encouragement and inculcation of synthetic thinking, the holistic approach to client and patient care and the understanding that clients do not live in a vacuum, the creation of a new generation of creative problem-solving professionals, and improved outcomes for clients and patients are a few. 

What does it mean to students?  Consider these comments from one of my students, reflecting on her experiences sharing case rounds with residents and participating in patient rounds at a hospital:

Through each of these multi-disciplinary interactions, I form a more complete picture of how my clients’ illnesses affect their daily lives.  I learn more about where my clients and their physicians are coming from.  Most importantly, I am connected with resources that provide evidence to help legally establish medical conditions.  Each of these things makes me better able to serve my clients.  Medical educators and law professors should seek to promote multi-disciplinary interactions among their students as much as possible – patients, clients, students, and even the professors will benefit from such collaborations.

One conference participant shared that he initially did not believe that such a collaboration was possible because of the location of his law school and the absence of a medical school nearby.  He confessed to asking himself, “Why do this?”  After hearing about examples from other schools, he ended up asking, “Why not?”

Are there other ways that we can incorporate interdisciplinary experiences for ourselves or students to benefit our teaching and student learning?

Communication and Jounalism departments can help you with focus groups to get ideas from alumni and lawyers in your community about the skills and values students should learn in law school. Medical school models of assessment can be great sources for skills based assessment. University accreditation initiatives are likely to involve a review of assessment priorities. Other departments around campus may have structured assessment initiatives that good be helpful and be a source for terrific speakers. Co-teaching with someone from another department will enrich teachign expertise and assessment ideas. We have used these resources in the past at the law school.

My advice for tapping these resources is 1) get involved with different teaching and assessment initiatives developed at your university and 2) participate in projects wtih professors from other departments and then introduce teaching and assessment as a topic. 3) call professors you know are doing interesting and innovative things and invite them to lunch. Insights from other disciplines informed the Best Practices Book and there is nothing like continuing the learning with your colleagues from other departments.

My colleague Mary Lynch asked me to share a project my bioethics students just completed.

I asked the 14 students in my Bioethics seminar to research the legal and ethical implications for Albany Law School of an H1N1 outbreak, and to work together to draft a memo outlining any policy changes the class would recommend to the Administration as a result of its research. The class worked on the project intensively for the better part of a week and a weekend. Although they had some disagreements, they reached consensus and drafted an impressive ten page memorandum that set forth the rationale for policy changes, the issues raised by a potential H1N1 outbreak, the applicable ethical and legal principles, and their recommendations on institutional responsibilities, attendance polices, isolation, school closures, vaccinations, and alternative means of instruction. They supported their recommendations with citations to the CDC, the state health department, the WHO, and other authoritative sources.

I was impressed enough with the students’ work product that I submitted their memo to the administration. The associate dean let the class know that the administration was persuaded by and grateful for the students’ input. She told the students that they should expect to see many of their recommendations incorporated into the school’s policy.

In reflecting on the project, the students noted how difficult but how satisfying collaborative work can be. They said they put many more hours into this assignment than they had other assignments — in large part because they felt their work might really make a difference.

Overall, I think the students learned a lot about public health ethics and policy drafting from the exercise. I’d love suggestions from blog readers about how to turn an exercise like this into a graded exercise. Given how much time the students put in, I think they should probably get more than class participation points for their work, but I worry about grading group projects.

In  September of 2008, the ABA’s Council of the  Legal Education and Admissions to the Bar Section (Council) began a comprehensive review of  the ABA Standards and Rules of Procedure for the Approval of Law Schools  relying on the work of the Standard’s Review Committee (SRC).   On October 9th, 2009, at the last of its currently scheduled meetings, the Council’s Standards Review Committee will be considering a proposal of the Student Learning Outcomes Subcommittee .  http://www.abanet.org/legaled/committees/comstandards.htm

It is worth a look at the ABA site to read the thoughtful and plentiful comments.  The Council’s comprehensive review may result in significant changes in how law schools are assessed and “incentivized” (I abhor that word but if fits here). Cogent comments from Law Librarians, the Institute for Law Teaching & Learning,  the AALS Clinical Section’s Clinical Skills Committee, CLEA and other individuals and organizations are listed . 

 On October 2nd, the Society of American Law Teachers (SALT)  submitted comments in response to the proposal, noting SALT’s long support of a shift in accreditation standards that would result in law schools consciously focusing on their students’ acquisition of the knowledge, skills and values needed for the practice of law.  SALT particularly applauded the inclusion of essential values and  the references in proposed 302(a) (3) to a “lawyer’s ethical responsibility” for the quality and availability of justice and in 305 to “law as a public profession calling for performance of pro bono legal services and public service activities.” 

Notably, on page 3 of the letter, SALT focuses on experiential learning and makes mention of the “important insights” of the Carnegie Report and Best Practices that “students learn best when they are performing real life lawyering tasks.”  The letter also encourages the Committee to provide clear Interpretations which encourage schools to provide multiple experiential learning opportunities which are “well-supervised” and “designed to encourage reflection” 

SALT’s letter is worth a read.  It is a broad-based group of diverse professors who teach both experientially and non-experientially and cannot be dismissed as representing just one group of teachers within academia.    Meanwhile, we wait to see how the Standards Review Committee responds on Friday.

During the past two weeks, many members of the Albany Law  faculty engaged in a series of  informal discussions about our teaching mission.   After surveying faculty interest , the Center for Excellence in Law Teaching  www.teachinglawstudents.com   hosted small meetings of 5-10 members focused on selected topics.  The intent was to stimulate conversation and unearth the collective  teaching wisdom too rarely mined.  Resource lists for each topic are provided before and at the meetings.  The sessions end with a written “One Minute Paper” to provide feedback to the Center about future activities. 

The first exchange focused on TEACHING DEVELOPMENT: Fostering Continued Skill Acquisition for New & Experienced Teachers.  It provided a natural opportunity to bring together the newest of our members with our most senior colleagues.  Facilitated by  Professor Nancy Maurer, faculty members inquired  about internal culture, the challenges that arise in and outside of the classroom,  and collaborative opportunities. Lively discussion about  teaching methods and engaged learning were examined over coffee, tea and scones. 

The second exchange focused on OUTCOMES & ASSESSMENT: Formative (Feedback) and Summative (Grades)  and was facilitated by Professor Kathe Klare, our Academic Success expert.   The participants were a mix of teachers  specializing in everything from constitutional law and jurisprudence to  governement and land use, from securities to lawyering.  The discussion centered on objectives, assessment methods, midterms, and  rubrics.  Questions were raised about the validity of grading class participation and the differing approaches to evaluating seminar papers.  

Today’s exchange, faciliated by our Academic Dean Connie Mayer, was entitled “BEYOND LECTURE: Course Design, Active and Engaged Learning Methods and Activity Design v. Assessment Design. ”  It focused specifically on how to engage in such methods in classes with large numbers of students.    Teachers who employed methods such as  small group work,  role plays and practice exams exchanged syllabi, tips and pros & cons of attempted experiments. 

Some faculty members found that the time spent on creating the problem activities for class were well worth the effort in future semesters. Professor Evelyn Tenenbaum discussed the need for appropriate case/problem books.   She discussed her work with the Context and Practice Casebook series developed by Michael Hunter Schwartz and  brought with her a copy of the first book in the series, Contracts.   These books are intended to ”guide students’ development of self-directed learning strategies; include questions that prompt readers to question, reflect, and analyze as they read; integrate self-regulated learning skills and exercises; and include teachers’ manuals that make it easy to use multiple methods of instruction and to emphasize active learning.”

Three thoughts occurred to me during these exchanges: 1)  a number of my colleagues have been engaged in “best practices” long before more elite schools discovered them but we haven’t known how to capitalize or market the special worth of these teachers; 2) we do need better methods for warehousing and sharing faculty wisdom and  materials; and 3) faculty members truly enjoyed the opportunity to discuss teaching with each other in a safe and supportive setting.

Our final Teaching Exchange scheduled for this coming Monday is entitled CURRICULAR DEVELOPMENT:  Outcomes, Learning Competencies, Progression &  Capstones.  It will move our discussion beyond our individual goals and methods to our collective ones.   After that, we will see where the conversation leads us……